Trespass to try titles, tried before Bay, J., in Sumter district, in October, 1808. Plaintiff’s deduction of title was as follows. Grant to John Chisholm, in 1774, who died in 1796, intestate, leaving one brother and three sisters, living in Scotland,'aliens, bis next of kin. One of the sisters proved to be dead, intestate, before the commeneemenl of this action, and plaintiff, her child, born in Scotland, and never in this country.
¶1delivered the opinion of the whole court, May 2d, 1810. Where the plaintiff, claiming land in fee, shows by evidence on his part that he is an alien, and claims the fee by inheritance, he *399defeats his claim, and ought to be nonsuited. Go. Lit. 189, C. An alien has uu inheritable blood. Plaintiff claims as heir. This is a new link in l'.is chain of title. He .has proved that he is not the heir of the grantee. Tile fee fell by escheat to the State, or passed to the next of kin capable of inheriting. Plaintiif made out no title.
Note. Another question in the case was, whether this action lies against one who is not in possession of the land in dispute, at the time of bringing the action? Another was, whether this action lies against a casual trespasser on land which he does not pretend to claim? See.treaty.between ü. tí. and G-. B., Anno 1794, art. 9. “British subjects, who’now hold lands, &c., shall continue to hold them, &c, and may grant, sell, or demise,&c , nor shall their heirs,&c , be regarded as aliens.” 4 Johns. 79. IV aturaiization not to Be presumed; matter of record.Bland ing, and Richardson, for the plaintiffNott, for the defendant.
